Citation Nr: 1308235 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-16 106 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left rib disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1970. This appeal to the Board of Veterans' Appeals (Board) arose from January 2009 and June 2009 rating decisions in which the RO denied service connection for a left shoulder injury and residuals of fractured ribs. In June 2009 the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010. In March 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For reasons expressed below, the claims on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The Veteran testified that during his military service he was in an automobile accident that resulted in injuries to his left shoulder and left rib. The Veteran was afforded a VA examination in June 2009 and the VA examiner stated as follows: It could be a speculation that the current x-ray findings (2009) showing "mildly displaced fx of the 7th rib with possible fractures also including the left 8th and 10th ribs" could be the old fractures in 1969. Veteran had a fall from the ladder in 2000 at work but did not report rib fractures. VA Medical records did not show any treatment for residuals of rib fractures. Report of June 2009 VA Examination The Board finds that the Veteran should be afforded a new VA examination in order for the VA examiner to provide an opinion on nature and etiology without resorting to mere speculation. The Veteran is hereby advised that failure to report to any scheduled examination, without good cause, may have adverse consequences on the claims. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Additionally, the Veteran testified that he had surgery to remove a cyst on his left shoulder at The University of Michigan and those records were not on file. He also stated that there are additional outstanding VA treatment records from Ann Arbor VA Medical Center (VAMC). Therefore, prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA medical records, the claims file currently includes VA treatment records from Ft. Myers VA Outpatient Clinic, dated up to June 1, 2009; Bay Pines VA Healthcare System, dated to February 8, 2010; and Ann Arbor VA Medical Center, dated from February 26, 2003, to October 21, 2005; records generated after these dates should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding records of VA treatment and/or evaluation of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the furnish, or furnish appropriate authorization for it to obtain, any outstanding private medical records, including any relevant records from the University of Michigan Hospital. Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the RO's last adjudication of the claims Accordingly, these matters are hereby REMANDED for the following action: 1. The RO should obtain any outstanding records of evaluation and/or treatment of the Veteran from Ft. Myers VA Outpatient Clinic (dated after June 1, 2009), Bay Pines VA Healthcare System (dated after February 8, 2010), and Ann Arbor VA Medical Center (dated before February 26, 2003, and after October 21, 2005). The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record..The RO should specifically request that the furnish, or furnish appropriate authorization for it to obtain, any outstanding private medical records, including any relevant records from the University of Michigan Hospital. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records/responses from each contacted entity are obtained, the RO should forward the Veteran's entire claims file, to include a copy of this REMAND, to the June 2009 VA examiner for an addendum opinion. The examiner should again review the claims file, to include the prior examination report. Then, with respect to the left rib injury, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, to include the in-service automobile accident. In rendering the requested opinion, the physician should specifically consider and discuss the service treatment records and all other post-service treatment records, along with the Veteran's contentions, and his assertions of continuity of symptoms since service. If the June 2009 VA examiner is no longer available (with clear documentation to that effect), or another examination of the Veteran is deemed necessary, the RO should arrange for the Veteran to under examination, by an appropriate physician at a VA medical facility, to obtain an opinion responsive to the question posed above. The entire claims file, to include a complete copy of THIS REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. If the requested opinion cannot be provided without resorting to mere speculation, the physician should clearly so state 5. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for service connection for left shoulder injury and left rib injury in light of all pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority. 8. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).